The 2018 Election and Its Impact

In this Thanksgiving week, I depart from my usual format, and look forward to the 2018 election.  While I expect Republicans to take a drubbing in total votes cast, the peculiar circumstances of this election indicate that Republicans will probably maintain control of the House, although with a smaller majority, and actually gain seats in the Senate.  Under this scenario, it will continue to be relatively easy for President Trump to fill judicial vacancies (even at the U.S. Supreme Court, should that occur).  It may also be somewhat easier for Republicans to pass certain narrowly focused but important legislation under “reconciliation,” but gridlock will otherwise continue.

Republicans Are Likely to Keep Control of the House and Increase Its Senate Majority, Despite Taking a Drubbing in Total Votes

The party of the president often does poorly in midterm elections, and most commentators expect Republicans to do poorly in 2018, at least in terms of total votes cast. However, U.S. House districts are drawn in such a way that despite many more total votes cast for Democrats, the Republicans may well keep their majority.

Likewise in the Senate, Republicans will probably keep their majority, and may well increase it, because many more at risk Democratic Senate seats are being contested in 2018.  In 2018, 25 Democratic Senators face reelection, compared to only 9 Republicans, and 10 of those Democrats are in states carried by President Trump.  While anti-Trump sentiment may be strong, anti-incumbent sentiment will also be strong; my sense is that at the end of a bloody 2018 election, the Senate will have a few more Republicans.  However, I see it unlikely that the Republicans will get to 60 Senate seats, which is the number of votes needed for the Senate to pass most legislation, with some narrow but important exceptions.

Reconciliation Legislation May Be Easier to Pass and Trump Judicial Nominations Will Be Easily Confirmed

The important exceptions are those matters that fit the definition of “reconciliation” under Senate rules, where 50 votes (and the Vice President breaking the tie) will pass legislation.  Important matters in the current session that can be passed with 50 Senate votes include budgeting, health care and taxes.

With Republicans continuing to control the House (where a simple majority can pass any legislation) and a larger majority in the Senate, the 2018 election could increase the likelihood of “reconciliation” legislation passing and becoming law.

Also, under current Senate rules, only 50 votes are needed to confirm judges, and maintaining a Senate majority will continue the easy path for President Trump to fill judicial vacancies, including any that may come in the U.S. Supreme Court.

No Significant Environmental Legislation, as the Senate’s 60 Vote Rule Is Likely to Stay

While the Republicans may gain Senate seats, I see little chance for significant environmental legislation, as that would take 60 Senate votes.  I do not see the Republican leadership changing the Senate’s 60 vote rule, although President Trump will continue to push for that change as long as Republicans are in the majority.  I see no chance of any significant bipartisan environmental legislation.

Congress will still be able to reduce EPA’s budget through “reconciliation,” with only 50 Senate votes.

Given the circumstances that 2018 presents, it is very possible that Republicans will be in a better position to pass “reconciliation” legislation, and to confirm judges, despite a huge total deficit in votes cast.  However, continuing political gridlock will prevent any major legislation that does not meet the “reconciliation” definition from being passed.

In a future Alert, I will discuss some less likely, although very possible, other scenarios.

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